NEW MARITIME LAWS IN THE SOUTH CHINA SEA: PORTENDS FOR FURTHER INSTABILITY?

The Vietnamese National Assembly passed a ‘Law on Vietnamese Sea’[1] on June 21, 2012, which provides legal basis for defining its internal waters, territorial waters, the contiguous zone, the exclusive economic zones (EEZ), continental shelf, islands, the Hoang Sa (Paracel) archipelago, the Truong Sa (Spratly) archipelago and other archipelagoes under Vietnam’s sovreignty, sovereign right and national jurisdiction. It also lays down the principles and policies for management and protection of such maritime zones. This Law took effect on January 1, 2013.

Interestingly, the provincial People’s Congress of the Chinese Hainan Province also released new ‘Regulation for the management of public order for coastal and border defense’, to take effect on the same day, January 1, 2013. It provides  legal coverage for Hainan’s Public Security Border Defense units to board or seize foreign vessels in case they are found to be indulging in activities ranging from stopping or anchoring within the territorial sea; entering ports without approval or inspection; landing illegally on islands under the administration of Hainan; destroying coastal defence facilities on such islands; violating national sovereignty or threatening national security; and threatening the public order in coastal and border areas.

Since the United Nations Convention on the Law of the Sea (UNCLOS) 1982 provides for the individual countries to frame their own laws/regulations  for defining and governing their maritime zones in conformity with the provisions contained therein[2], various countries including China and India have done so. The Chinese National Peoples’ Congress promulgated its own ‘Law on the Territorial Sea and Contiguous Zone’ on February 25, 1992 and followed it up with the ‘Exclusive Economic Zone and Continental Shelf Act’ in June 1998. Likewise India also passed the ‘Maritime Zones of India Act’ in 1976, incorporating all the UNCLOS provisions applicable to it. So the instant Vietnamese law has just followed the prevalent legal practices with respect to their maritime jurisdictions vis-a-vis the 1982 UNCLOS. The Vietnamese Foreign Minister Pham Binh Minh, clarified as much by stating during an interview that “…for the first time, our country has a law which fully covers the legal status of sea and islands under Vietnam’s sovereignty and sovereign rights in accordance with the UNCLOS. This is the important legal basis for the management, protection and development of our country’s sea-borne economy.”[3]

Inherent Limitations of UNCLOS

The UNCLOS provides for the member countries to proclaim their specific maritime zone laws/regulations, with an overarching vision that an integration of all such laws will ensure that most of the global maritime space is uniformly managed and regulated. It would also facilitate clear demarcation and recognition of huge swaths of high seas as ‘global commons’ for the general usage of all countries and overall benefit of mankind. However, it has often transpired that the implementation of best laid out plans and many a well-meaning initiative has not actually panned out, as was originally envisioned. The interpretation and consequent implementation of the 1982 UNCLOS provisions has also faced the same impediment.

While the local maritime zones of a country which has vast sea-board all around would not come into conflict with those of any other country, such geographical luxury is a rarity. The real problems begin when the States are either located adjacent to each other or lie opposite, with not enough maritime space as stipulated by UNCLOS 82 provisions, between them. The existence of rocks, shoals, reefs and islands in such constrained space and differing levels of sea areas associated with them, further complicates the picture. To top it all, the definition of such landforms as laid down in UNCLOS are not fool-proof and are by implication, open to different interpretations, to suit the individual State’s arguments. This makes the issue even more vexed.

Coming back to the ‘Law on Vietnamese Sea’, what has caused China to ‘see red’ are the ‘operative words’  relating to ‘Vietnam’s  sovereign right and national jurisdiction over the Paracel and Spratly islands’ in Article 1 itself, which  defines the scope of the regulation. Chinese State Council, in a ‘tit-for-tat’ reaction announced the elevation of the county level ‘Sansha City’ on the Woody Island to the next higher prefectural-level the day after, on June 21, 2012. This upgraded entity was mandated with the administration of Xisha, Zhongsha and Nansha islands, the Chinese names for the Paracel islands, Macclesfield Bank (submerged) and Spratly islands respectively. Hainan’s new Regulation too makes a mention of its jurisdictional coverage, that is, “…islands under the administration of Hainan…”

Sovereignty: The Main Issue

Therein lies the crux of the problem, and that is the sovereignty question. The sovereignty dispute between the two countries has been a long-standing one. The countries have even resorted to force in 1974, when China wrested control of Paracel islands from Vietnam in a localised naval conflict and in 1988 over the Johnson Reef. The situation vis-a-vis Vietnam has thereafter remained relatively subdued though China again threatened to use Force against Philippines after it occupied the Mischief Reef in 1995. Perhaps Acknowledging that use of force was not a great option to resolve these disputes, China and the ASEAN countries signed a ‘Declaration on Conduct of parties in the South China Sea’ in 2002 (DOC 2002). The DOC 2002 provided for keeping the disputes pending for the time being, whereby all concerned parties would refrain from such activities that would complicate or escalate the situation. In the meanwhile, the parties were allowed to engage in cooperative endeavours like joint marine scientific research, environmental protection and search and rescue in the area. Further, all efforts towards dispute resolution were to be undertaken by peaceful means through negotiations between sovereign states directly concerned. The non-binding DOC 2002 was largely instrumental in maintaining peace and stability in the region till such time the signatories generally followed the confidence-building measures laid down therein.

However the boat was rocked again by China on May 7, 2009 when in an official communication to the Secretary-General of the United Nations, it stated that China “enjoyed sovereign rights and jurisdiction over the islands in the South China Sea and the adjacent waters, as well as sea bed and sub-soil thereof”.[4] The Chinese government also attached a map showing the nine dotted lines therein, to substantiate its claim, an unaltered copy of which is shown opposite. The tensions between China and Vietnam on one hand and between China and Philippines on the other have become increasingly frequent and intense thereafter. Two notable incidents that occurred since then, one each against Vietnam and Philippines are mentioned below:-

• A month-long stand-off between China and Vietnam following the cutting of exploration cables of a Vietnamese seismic survey ship ‘Binh Minh 02’ by the Chinese maritime patrol ships in the Vietnamese EEZ in May 2011.
• An extended ‘war of nerves’ against Philippines over Huangyan Island (Scarborough Shoal) that lasted for nearly three month commencing mid April 2012.

Even though both countries made valiant efforts in opposing above Chinese actions which they felt were wholly unjustified and unjustifiable, it would not be totally incorrect to assume that China came off as the better placed opponent on the ground, when a temporary ‘truce of sorts’ descended. Another noteworthy aspect that emerged while China engaged its two maritime neighbours relates to the Chinese media, legal and psychological warfare, as part of its ‘Three Warfare’ theory. This was particularly apparent vis-a-vis US wherein China continued to paint the American interest in the region and the US call for multilateral resolution of the dispute as wholly unwarranted and, in fact detrimental to the peace and stability of the region. Specifically, China was extremely critical of the US Senate resolution[5] post May 2011 incidents in Vietnamese EEZ. It also warned Philippines against using American surveillance drones in the Huangyan area, when US offered their services to that country.

Serious Portends

The above narrative unmistakably brings out the fact that the issues of ‘sovereignty’ and ‘maritime rights/jurisdiction’ are intertwined in such complexities that there seems to be no scope for an early, sustainable and equitable solution. The absolute positions adopted, particularly by China and Vietnam with respect to sovereignty over the islands, comprehensively retard the resolution initiatives. Unfortunately, while the UNCLOS deals with the maritime zones, their governance, rights of coastal states and those of the others, as also dispute redressal mechanisms related to the maritime zones associated with the sovereign territory of the nations, it has no provisions for resolving the sovereignty disputes per se. By implication, promulgation of the ‘Law on Vietnamese Sea’ under the provisions of UNCLOS 82 would also have only limited bearing on the gains that it can offer to Vietnam in this aspect.

On the contrary, the legal mandate provided to its maritime law enforcement agencies which includes “Protection of sovereignty, sovereign right and national jurisdiction on seas and islands of Vietnam” brings forth serious portends for the two countries’ forces to face off with increased resolve, in light of the fact that the Hainan’s provincial law also grants similar mandate to its maritime agencies in “waters and islands under its administration”.

In the interim, the Global community can only await such an eventuality.

Endnotes:

[1] Law No. 18/2012/QH13 dated June 21, 2012 of the National Assembly on Vietnamese sea, http://luatkhaiphong.com/Van-ban-Tieng-Anh/Law-No.-18/2012/QH13-dated-June-21-2012-6856.html, accessed January 23, 2013.

[2] See UNCLOS  Articles 3, 16, 21, 27, 28, 33, 34, 42, 49, 56, 73, 77,  78.

[3] Interview with Foreign Minister Pham Binh Minh on the content of Vietnam Maritime Law, June 21, 2012, http://english.vietnamnet.vn/en/politics/24094/fm-clarifies-content-of-vietnam-maritime-law.html, accessed January 23, 2013.

[4] The Chinese communication (CML/18/2009 of May 7, 2009)  was in response to Vietnamese submission dated May 7, 2009 to the ‘UN Commission on the Limits of the Continental Shelf’., http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf , accessed  January 28, 2013.

[5] US Senate Resolution 217 dated June 27, 2011, ‘Calling for a peaceful and multilateral resolution to maritime Territorial disputes in Southeast Asia.’

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About the Author:

Commander Kamlesh K Agnihotri is a Research Fellow with the China Cell of the National Maritime Foundation, New Delhi. The views expressed are solely those of the author and do not reflect the official policy or position of the Indian Navy or the National Maritime Foundation. The author can be reached at kkagnihotri@maritimeindia.org